After a juvenile judge’s ruling, Diante Pellum, now 15, became the first King County youth under age 16 to be charged as an adult with murder in more than eight years. He and his 16-year-old co-defendant are accused of fatally shooting another teen in Federal Way in February.
Diante Pellum was 14 years old when police and prosecutors say he and a friend lured another teen to a Federal Way parking lot to rob him of marijuana, then shot him in the head.
After weighing a variety of factors, including the seriousness of the crime and Pellum’s past contacts with police and school officials, a juvenile judge this week ruled the boy should face prosecution as an adult. Pellum is the first defendant in King County under the age of 16 to be charged as an adult with murder in more than eight years.
Pellum and 16-year-old Michael Rogers are each charged with first-degree murder for the Feb. 13 killing of Wesley D. Gennings, who was shot in the back of his head as he sat behind the wheel of his car in the parking lot of a Taco Bell restaurant.
The ‘Kent factors’
The eight Kent factors a judge must weigh in determining whether a case remains in juvenile court or is transferred to adult court:
• The seriousness of the alleged offense to the community and whether the protection of the community requires waiver;
• Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
• Whether the alleged offense was against persons or property, with greater weight being afforded to offenses against persons, especially if personal injury resulted;
• The prosecutive merit of the complaint, i.e., whether there is evidence upon which a grand jury may be expected to return an indictment;
• The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults;
• The sophistication and maturity of the juvenile as determined by consideration of the juvenile’s home, environmental situation, emotional attitude and pattern of living;
• The record and previous history of the juvenile, including previous contacts with law enforcement, juvenile courts, probation, and commitment to juvenile institutions;
• The prospects for adequate protection of the public and likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities current available to the Juvenile Court.
Source: Kent v. United States
They are accused of luring Gennings, 16, to the parking lot at 21st Avenue Southwest and Southwest Campus Drive to rip him off during a marijuana deal, according to the charges filed against them. Pellum, who has since turned 15, is the alleged gunman who fired at Gennings from the back passenger seat of Gennings’ car, the charges say.
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It’s rare but not unheard of for a defendant under the age of 16 to face murder charges in adult court. But to have a case moved from juvenile court to adult court, what is known as a “decline hearing” must first be held, which in Pellum’s case occurred Oct. 28.
Basically, the state must prove by a preponderance of evidence that it is in the best interests of the community and defendant for the juvenile-court system to decline jurisdiction and transfer a case to the adult system.
A juvenile-court judge must weigh eight factors — known as “Kent factors,” based on a 1966 U.S. Supreme Court decision — in determining whether a case stays in juvenile court or is transferred for adjudication in adult court.
For 16- and 17-year-olds, the decline of juvenile jurisdiction happens automatically if the charge involves a serious violent offense, such as murder, rape or robbery.
So far this year, eight 16- and 17-year-olds have been charged with either first- or second-degree murder, and their cases were all “auto declined” to King County Superior Court, according to Dan Donohoe, a spokesman for Prosecutor Dan Satterberg.
Pellum is the first youth in King County this year subject to a “discretionary decline,” which set in motion the court procedures to determine if the Kent factors, which involve the nature and seriousness of the crime and the defendant’s background, weighed in favor of moving his case to King County Superior Court or keeping his case in the juvenile system.
Prosecutors did not seek decline for a Seattle 13-year-old who, along with his two older brothers, was charged with two counts of second-degree murder and three counts of first-degree assault for shootings in The Jungle homeless encampment in January. Unlike his brothers, the 13-year-old will be prosecuted in juvenile court.
The transfer of jurisdiction means harsher potential penalties for young offenders. If Pellum were convicted of the same crime in juvenile court, he would be released from custody on his 21st birthday.
Should he be convicted in Superior Court, the trial judge could consider Pellum’s youth as a mitigating circumstance to support a sentence below the standard range for both adults and those juveniles who wind up in adult court.
While 16- and 17-year-olds convicted of first-degree murder must serve the mandatory minimum of 20 years in prison before they can petition the state for release, a judge has the discretion to sentence younger juveniles to less than 20 years.
Prosecutors are also seeking a discretionary decline in the case of a second youth, a 15-year-old Des Moines teen who was charged with second-degree murder for a fatal shooting in May. His decline hearing is set for Dec. 14.
The Seattle Times generally does not name juvenile criminal defendants unless they are charged as adults.
All told, King County prosecutors have charged 11 juveniles with murder this year — and all of their alleged victims were killed by gunfire. In contrast, prosecutors didn’t file a single murder charge against anyone under the age of 18 in 2015, said Donohoe.
“I am not sure why this year has seen so many crimes committed by kids with guns. We might have just been lucky last year,” Satterberg, the prosecutor, said in an email. “The emerging brain science about adolescent development is tragically affirmed in these cases where young people with guns make impulsive life-altering decisions for seemingly petty reasons.”
The last time prosecutors sought to have a juvenile under the age of 16 declined to adult court on a murder charge was for a 2008 shooting in Federal Way, but a judge in that case ordered that it remain in juvenile court, said Donohoe.
Judge Regina Cahan of King County Juvenile Court acknowledged Pellum’s decline hearing was the first one she had presided over in her eight years on the bench.
In her opening statement at the Oct. 28 hearing, Senior Deputy Prosecutor Julie Kline agreed with Cahan that “this is a rare occurrence,” one that is “reserved for the most egregious of crimes” involving juvenile suspects.
Federal Way police Detective Michael Coffey testified that the vast majority of the 40 or 50 witnesses in the case against Pellum and Rogers are middle- and high-school students. Many of them delayed talking to police and then requested police escorts to and from school because they were afraid of retaliation by the suspects and members of their “crew,” he said.
Defense attorney John Crowley argued against decline in Pellum’s case and questioned Tara Murphy, a clinical psychologist who assessed Pellum and testified that the teen’s behavioral problems are rooted in his severe cognitive impairments. She said Pellum functions at the intellectual level of an 8- to 10-year-old.
Crowley also argued the state presented “zero evidence” in charging documents about who shot Gennings, though he acknowledged there was evidence Pellum and Rogers planned the robbery.
“This death, it’s unknown how it happened,” Crowley told the judge.
Kline, the deputy prosecutor, told Cahan the state’s primary concern “is adjudicating this case in one fell swoop” because witnesses whose names are made public after testifying in one case could be too intimidated to testify a second time, regardless of whether Rogers or Pellum is tried first.
“Our concerns for the safety of the juvenile witnesses are well-founded,” Kline said.
On Monday, Cahan ultimately ruled that seven of the eight Kent factors weighed in favor of declining Pellum’s case to Superior Court. The only factor she found in Pellum’s favor against decline was regarding the defendant’s sophistication and maturity.
If he were found guilty in juvenile court, Cahan said, the prospect of releasing Pellum from custody at age 21 would “be outside community expectations” of an appropriate sentence for first-degree murder.